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November 14, 2013

[The government has given tacit – at times explicit – support for militant Buddhist attacks on mosques, as well as Muslim businesses and cultural practices. These have continued with impunity for almost two years. Many believe leaders use fear of “Muslim extremism” to shore up Sinhalese support. Despite occasional tensions, the two communities have traditionally maintained cordial relations. Violence against Christian churches and worshippers also appears to be on the rise in 2013, with no serious government efforts to prevent or punish attacks.]

Asia
Report N°253

Nov 2013

EXECUTIVE SUMMARY AND RECOMMENDATIONS

Sri Lanka’s
ethnically-exclusive regime continues to close political space and consolidate
its power. Recent moves that create a perception of progress have not weakened
the power of the president, his family or the military or brought
reconciliation, ended human rights abuses or reduced impunity. The Tamil
National Alliance (TNA) won a landslide victory in September’s long-awaited
northern provincial council elections. Yet, President Mahinda Rajapaksa’s
administration is reluctant to allow devolution to begin, preferring to
maintain de facto military rule in the north. It faces increasing social and
communal pressures elsewhere, too. Journalists, human rights defenders and
critics of the government are threatened and censored. With opposition parties
weak and fragmented, continued international pressure and action are essential
to stem the authoritarian turn and erosion of rule of law, realise the
devolution of power promised in the constitution and start a credible
investigation of alleged war crimes by government forces and the Tamil Tigers
(LTTE).

The long-awaited northern province elections – the
result of intense pressure from India, Japan and the U.S. – are welcomed
internationally. However, the TNA-controlled council will almost certainly have
to battle the president to claim even its limited powers, which can be enjoyed
only with central government cooperation. No provincial council has ever been
permitted to exercise all powers granted by the constitution’s thirteenth
amendment, which established a degree of devolution. The constitutional and
legal context is not favourable to the TNA, especially under the current chief justice,
appointed after his predecessor was unconstitutionally dismissed in January
2013. The TNA will also be under pressure from a restive Tamil constituency
that was wooed during the campaign with strongly nationalist, sometimes
pro-Tamil Tigers statements but is sceptical the council offers northern Tamils
real power. For the election to be a meaningful step toward resolving the
ethnic conflict, Colombo would have to
abandon its hostility to devolution and reverse its policy of militarisation,
centralised control and creeping Sinhalisation of the north.

To succeed, the
northern provincial council requires financial, technical and political support
from the international community. India, the U.S. and other
influential governments should make clear to Colombo that diplomatic
pressure will intensify if it pushes through constitutional changes that weaken
or eliminate provincial councils. Working with multilateral development
agencies, those governments should aim to prevent further regression through
state- and military-assisted demographic change in the north and east.

Devolution in the
north is unlikely to make real progress while the rest of the country suffers
from democratic deficit. The TNA would do well to frame its struggle for
demilitarisation, security and democratic rights in both the north and east in
ways that resonate with growing unhappiness elsewhere at how Sri Lanka is being governed.
Increasing numbers of Sinhalese are questioning the high cost of living,
corruption, economic mismanagement, land grabs and apparently
politically-connected violence. Faced with popular discontent and protests on a
range of social and economic issues, the government has frequently responded
with repression and violence, using the Prevention of Terrorism Act to jail
critics and the army to attack protesters. This has led to unprecedented public
criticism of the army, police and ruling family. There is also evidence of
serious discontent within the president’s own party and cabinet.

The government has
given tacit – at times explicit – support for militant Buddhist attacks on mosques,
as well as Muslim businesses and cultural practices. These have continued with
impunity for almost two years. Many believe leaders use fear of “Muslim
extremism” to shore up Sinhalese support. Despite occasional tensions, the two
communities have traditionally maintained cordial relations. Violence against
Christian churches and worshippers also appears to be on the rise in 2013, with
no serious government efforts to prevent or punish attacks.

Prior to the late
August visit to Sri Lanka by the UN High Commissioner for Human Rights, the
government announced legal and administrative moves to address some of the
recommendations of its own Lessons Learnt and Reconciliation Commission (LLRC)
and the UN Human Rights Council’s March 2013 resolution on reconciliation and
accountability. These have been too weak to help restore the independence of
the judiciary or police, curb militarisation or ensure accountability for
alleged war crimes. If anything, institutionalised impunity has increased, and
power remains firmly concentrated with the president and his family.

Participants should
use the November 2013 meeting of Commonwealth leaders in Colombo (CHOGM) to
press the Sri Lankan government to address human rights abuses, prevent attacks
on religious minorities and restore the independence of the judiciary. Leaders
should also publicly insist on a credible process of accountability for
end-of-war events and a political solution built on deepened devolution of
power within a united Sri Lanka. UN Human Rights
Council members should begin designing an international mechanism empowered to
investigate the many credible allegations of violations of international law by
both sides in the civil war and to monitor continuing human rights violations
and attacks on the rule of law.

The government’s
policies have badly damaged the rule of law and democracy, undermined the
rights of Tamils, Muslims and Sinhalese alike and rendered all Sri Lankans
insecure. If it continues to close off avenues of peaceful change, the risks of
violent reaction will grow. International vigilance and pressure are essential
to keep the situation from getting worse.

RECOMMENDATIONS

To support
establishment of an effective northern provincial council and lay the
groundwork for more substantial devolution of power

To the government of Sri Lanka:

1. Support
establishment of an effective northern provincial council by:

a) giving it an
adequate budget and allowing it to receive international development assistance
through the national treasury;

b) refraining from
using the president’s and governor’s powers to block or delay enabling
legislation for council ministries;

c) appointing a
provincial governor who has the council’s confidence and a provincial chief
secretary chosen by its majority, and ensuring that the provincial
administration is adequately staffed with competent professionals; and

d) establishing the
national land commission, or similar mechanism, to lead an inclusive national
dialogue on land use and land rights.

2. Reduce the
number of troops and military camps in the northern province, remove the military
from involvement in civilian administration and return all arbitrarily seized
land.

3. Implement
the thirteenth amendment fully and abandon plans to reduce provincial powers
and resume talks with the TNA on constitutional reforms for meaningful
self-rule in the north and east, with adequate protections for Muslims and
Sinhalese.

a) passing the
necessary legislation needed to establish its full powers under the thirteenth
amendment;

b) appointing
qualified personnel to the provincial administration and arranging training for
its administrators and council members of all parties, including in drafting
legislation and overseeing the provincial administration;

c) inviting UN
agencies to assist in conducting a humanitarian and early recovery needs
assessment in the north and to collaborate on other ways of meeting the
northern population’s needs;

d) preparing with
international development agencies and the central government constitutionally
permissible ways to receive donor financial aid; and

e) conducting surveys
of land use and ownership; the number and extent of army camps; reported
population movements and demographic changes along the edges of the northern province; and the extent of
psycho-social needs and war-induced trauma.

5. Continue to
pursue significant constitutional reform, within the framework of a united Sri Lanka, to ensure
meaningful self-rule for Tamil-speaking communities in the north and east, with
adequate protections for Muslims and Sinhalese.

6. Work with
Muslim community and political leaders in the north and east to develop
cooperative, inclusive procedures for mediating land disputes, taking into
account the rights of displaced northern Muslims; and to develop common
positions on constitutional reforms for meaningful devolution of power.

To the United
National Party (UNP):

7. Encourage
the government publicly to cooperate with the northern provincial council in
establishing its full range of thirteenth amendment powers and to re-enter
bilateral negotiations with the TNA for more extensive devolution.

To bilateral and
multilateral development agencies:

8. Begin
discussions with the central and provincial governments on constitutionally
appropriate ways of providing development assistance to the northern council
and establishing project-based partnerships with provincial ministries.

9. Establish a
donor working group on the north and east to coordinate capacity-building
assistance to the provincial councils and administration, beginning with a
comprehensive needs assessment for the north.

To end impunity and
restore the rule of law and democratic institutions

To the government of Sri Lanka:

10. Cease all
support for anti-Muslim and anti-Christian harassment and give clear
instructions to the police to prevent and punish any threats or violent
attacks.

11. Reestablish
an autonomous constitutional council to appoint senior judges, the attorney
general and independent commissions on police, human rights, judicial services,
public services and bribery.

12. Reestablish
the attorney general’s independence and create an independent public prosecutor
to conduct credible investigations into enforced disappearances and violations
of international humanitarian law by government forces and the LTTE from 2006
to 2009.

13. File
indictments in a high court for those responsible for the “Trinco Five”
killings in 2006 and other cases of apparently extrajudicial killings.

14. Publish the
reports of the Udalagama commission of inquiry into serious human rights
violations and implement the major recommendations of previous commissions on
enforced disappearances.

15. Campaign
for reestablishment of an autonomous constitutional council to appoint senior
judges and independent public commissions and for creation of an independent
public prosecutor tasked to investigate serious human rights violations,
including of international humanitarian law and enforced disappearances.

To the Commonwealth
member states:

16. Use the
Heads of Government Meeting (CHOGM) to raise concerns about the government’s
attack on judicial independence, growing authoritarianism and failure to
investigate alleged war crimes; prevent Sri Lanka from serving as the
chair-in-office for the next two years; and request the secretary general to
terminate his good-offices initiatives.

To the UN Human
Rights Council (UNHRC) member states:

17. Lay the
groundwork to establish at the March 2014 session, if the government is unable
to demonstrate progress, a strong international mechanism empowered to
investigate credible allegations of violations of international law by both
sides in the civil war and to monitor continuing human rights violations and
attacks on the rule of law.